Court of Appeals of Texas, Twelfth District, Tyler
FROM THE 349TH JUDICIAL DISTRICT COURT ANDERSON COUNTY, TEXAS
consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
Texas Department of Public Safety appeals the trial
court's order granting an expunction of N.E.'s arrest
for "attempted prohibited substance in a correctional
facility." In a single issue, DPS contends the trial
court should not have granted the expunction. We reverse and
was arrested on August 25, 2009, and subsequently charged
with "prohibited item in a correctional facility"
that was alleged to have occurred on or about March 31, 2009.
Pursuant to a plea agreement, N.E. pleaded "guilty"
and the court sentenced her to three years deferred
adjudication community supervision. N.E. successfully
completed all three years of her community supervision.
2017, N.E. filed a motion to expunge all criminal records and
files relating to the March 31, 2009 charge and deferred
adjudication. In her motion, she alleged that she
successfully completed her pretrial agreement with the
Anderson County District Attorney's Office. Following a
hearing in which DPS did not participate, the trial court
granted N.E.'s petition. This restricted appeal followed.
only issue, DPS contends N.E. was not entitled to have her
arrest record expunged because she served community
supervision as a result of the arrest.
can prevail in a restricted appeal only if (1) it filed
notice of the restricted appeal within six months after the
judgment was signed, (2) it was a party to the underlying
lawsuit, (3) it did not participate in the hearing that
resulted in the judgment complained of and did not timely
file any postjudgment motions or requests for findings of
fact and conclusions of law, and (4) error is apparent on the
face of the record. See Tex. R. App. P. 26.1(c), 30;
Ins. Co. of State of Penn. v. Lejeune, 297 S.W.3d
254, 255 (Tex. 2009). For purposes of a restricted appeal,
the face of the record consists of all papers on file in the
appeal, including the reporter's record. Norman
Commc'ns v. Tex. Eastman Co., 955 S.W.2d 269, 270
(Tex. 1997); Flores v. Brimex Ltd. P'ship, 5
S.W.3d 816, 819 (Tex. App.-San Antonio 1999, no pet.).
review a trial court's order granting or denying a
petition for expunction under an abuse of discretion
standard. See Heine v. Tex. Dep't of Pub.
Safety, 92 S.W.3d 642, 646 (Tex. App.-Austin 2002, pet.
denied). A trial court abuses its discretion if it acts
"without reference to any guiding rules or
principles." E.I. du Pont de Nemours & Co. v.
Robinson, 923 S.W.2d 549, 558 (Tex. 1995). If an
expunction ruling turns on a question of law, we review it de
novo because a "trial court has no 'discretion'
in determining what the law is or applying the law to the
facts." Walker v. Packer, 827 S.W.2d 833, 840
(Tex. 1992). A trial court abuses its discretion if it
misinterprets or misapplies the law. Id.
the law that governs expunctions is part of the code of
criminal procedure, an expunction proceeding is civil in
nature and is governed by the rules of civil procedure.
See Carson v. State, 65 S.W.3d 774, 784 (Tex.
App.-Fort Worth 2001, no pet.). Expunction is not a
constitutional or common law right, but purely a statutory
privilege. Tex. Dep't of Pub. Safety v. Nail,305 S.W.3d 673, 675 (Tex. App.-Austin 2010, no pet.). The
trial court must strictly comply with statutory requirements,
and has no equitable power to extend the ...